H.C.P.TRIPATHI, J. - (1.) THIS revision is directed against an order of acquittal passed by the learned Sessions Judge of Kanpur in a case under Section 302 I.P.C.
(2.) THE incident which was the subject -matter of Criminal Sessions Trial No. 272 of 1961 before the learned Sessions Judge had taken place on the 21st of October, 1961 at about 6.30 P.M. in Rani -ka -baghicha in the city of Kanpur in which Tulsi deceased was said to have been stabbed and two persons, namely, Laxmi Narain and Shyam Lal, were sent up for trial under Section 302 I.P.C. for having committed that offence.
(3.) IN support of its case the prosecution has mainly relied on the testimony furnished by five eye -witnesses of the occurrence and on the dying declaration which was supposed to have been recorded at the hospital by Dr. S.C. Agarwal who was examined to prove the same. In corroboration of the testimony of the eye -witnesses reliance was also placed on the report lodged with the police which was supposed to have been dictated by the deceased himself. After weighing the evidence furnished by the eye -witnesses, the learned Sessions Judge was of opinion that "taking this evidence as a whole it is difficult to give a Judicial finding that the assailants were actually seen by the witnesses making the assault." About the probative value of the dying declaration the learned Judge, after discussing the circumstances in which it was alleged to have been made, has observed as follows : - "When the entire evidence relating to the dying declaration and what happened at the hospital is taken into consideration, I find it difficult to rely on, the dying declaration supposed to have been recorded in these circumstances........... In the circumstances, the dying declaration also could as well as be doubted as being genuine." Having assessed the value of other evidence produced in the case, the learned Judge was of opinion that "the evidence is not free from suspicion from beginning to end. The statements of the eye -witnesses are discrepant. The authenticity of the dying declaration is doubtful and the so -called confession by Laxmi Narain of having stabbed someone also does not appear to have been proved by reliable evidence," and, therefore, acquitted the accused.;